Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Who is an authorised “emergency services officer” during the current NSW disaster?

This is an interesting issue. A correspondent has sent me an order, signed by the Commissioner of the NSW Rural Fire Service, authorising emergency officers to exercise various powers under the State Emergency and Rescue Management Act 1989 (NSW). The Authorisation of Powers is attached to this post.

In the authorisation, the Commissioner says (emphasis added):

… the Premier of New South Wales, the Hon Barry O’Farrell has made a declaration of a State of Emergency…
The Minister for Police and Emergency Services, the Hon Michael Gallacher MLC has delegated his powers under Division 4, Part 2 of that Act to myself as Commissioner of the NSW Rural Fire Service…
Pursuant to this delegation I hereby authorise all emergency service officers in New South Wales to use certain powers under the State Emergency and Rescue Management Act 1989.

Later various powers under ss 37 and 37A are authorised.

The Minister’s power to delegate to the Commissioner is provided for in s 10. I think the more accurate reference to the relevant part of the Act would be “Part 2, Division 4”, not “Division 4, Part 2”; the relevant provisions are in a sub-division (Division 4) of a broader part (Part 2 – State Emergency Management), but nothing turns on that.

The term ‘emergency services officers’ is defined in s 32A. That section says:

“emergency services officer” means any of the following (emphasis added):
(a) a police officer,
(b) an officer of Fire and Rescue NSW of or above the position of station commander,
(c) an officer of the State Emergency Service of or above the position of unit controller,
(d) a member of a rural fire brigade of or above the position of deputy captain,
(e) a Regional Emergency Management Officer,
(f) a member of the Ambulance Service of NSW of or above the rank of station officer.

The position of ‘Regional Emergency Management Officer’ was provided for in the Act until 2012 (Emergency Legislation Amendment Act 2012 (NSW)). The relevant definition is now in the New South Wales State Emergency Management Plan – which says at [412]:

The NSW Police Force is required to provide executive support for each REMC and the REOCON in the region concerned. These personnel are termed Regional Emergency Management Officers.

The REMC is the Regional Emergency Management Committee (State Emergency and Rescue Management Act 1989 (NSW) s 22) and the REOCON is the Regional Emergency Operations Controller (s 24). The REOCON must be a police officer. There is nothing in the Emergency Management Plan to say that the Regional Emergency Management Officer must be a police officer.

At this stage, it appears that all emergency service officers, including a REMO, are authorised to exercises powers under s 37 and 37A. But, if we can go back to the Commissioner’s authorisation, it says:

Emergency Services Officers are:
• a police officer,
• an officer of Fire and Rescue NSW of or above the position of station commander,
• an officer of the NSW State Emergency Service of or above the position of unit controller,
• a member of a NSW Rural Fire Service brigade of or above the position of deputy captain,
• a member of the Ambulance Service of NSW of or above the rank of station officer.

The problem is obvious. This list is not a direct ‘lift’ from the Act and has omitted Regional Emergency Management Officers. So where does this leave REMO’s?

There are two possible interpretations. The first is that the statement “I hereby authorise all emergency service officers” is the relevant authorisation and that it does what it says, namely authorise all emergency service officers; and that the list headed ‘Emergency Services Officers are…’ is meant to simply restate who is an emergency services officer, and the failure to properly cite the section, and therefore to exclude REMO’s, is simply a mistake.

The alternative is that the statement is meant to be a limited authorisation, not for all emergency services officers, but for those officers listed in the authority.

Section 37(1) says:

“The Minister may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency, direct, or authorise an emergency services officer to direct, a person to do any or all of the following…”

Section 37A starts in the same terms.

The Commissioner, as the Minister’s delegate, could authorise an individual emergency services officer or in this case a limited class of such officers. That may be reasonable as he may not have wanted to give emergency powers to the ‘executive officer’ of the REMC who has no clear operational role. If the REMO is a police officer then they are authorised, but if they are not a police officer then the deliberate omission may be reasonable.

However if it was intended to be a limited authorisation it would be better if it said something like:

Pursuant to this delegation I hereby authorise the following New South Wales emergency service officers to use certain powers under the State Emergency and Rescue Management Act 1989…

As it is the document is simply unclear and without further, external material, it’s not possible to reach a conclusion as to what is meant. This will only be problematic if a REMO does try to exercise emergency powers. The authorisation goes onto say:

While these powers are authorised for use, the actual requirement and decision to use then in specific cases will be determined via standard agency and inter-agency command and control arrangements.

It follows that it’s up to the police, through normal internal arrangements to determine what is the role of the person appointed as the REMO. The REMO would be bold indeed to try and exercise those powers by virtue only of this order if the exercise of those sorts of powers was not part of the police forces’ “standard agency and inter-agency command and control arrangements”. As noted, if the REMO is a police officer then this is not an issue.

Whether or not this is problematic however, it would be better if the authorisation was more carefully drafted with reference to the Act.

A LEMO is a local emergency management officer. The Emergency Management Plan says (at [422]) “Council is required to provide executive support for the LEMC and the LEOCON in its area. These officers are termed Local Emergency Management Officers.” (LEMC is the Local Emergency Management Committee; the LEOCON is the Local Emergency Operations Controller, again a police officer). A LEMO is not an emergency services officer (as defined in the State Emergency and Management Act 1997 (NSW) s 32A). So where does the Commissioner’s authorisation leave the LEMO? Where they were before that authorisation – the LEMO has no authority to exercise emergency powers.

The emergency powers of REMOs is one of the more curious aspects of the NSW SERM Act given that they’re few in number and that their (important) operational role is mostly about advice, coordination and support. I can’t imagine a situation where a REMO would actually be called upon to use the State of Emergency powers, so from a practical standpoint the omission is probably of little significance.

Thanks for this post – one has to recall that often what’s happening here is playing lawyers word games with things that are of probably little significance in day to day operations. It is hard to imagine when a REMO would want to, or be in a position to, exercise emergency powers. The issue is not really the significance of this omission or, more specifically, the wording of this authorisation, is its poor and ambiguous drafting. Because of the drafting it is unclear whether or not REMO’s can exercise emergency powers. It’s probably of little significance, but what we know from high reliability organisations, you need to pay attention to the matters that are “probably of little significance” because, if you get enough of them, even though each, on its own, is insignificant, the implications are massive.

Let us assume for example the next Royal Commission and the issue is why a REMO did, or did not, act to exercise emergency powers and some terrible tragedy has occurred. The question may be whey did he or she decide to act in that way and they answer they thought they were authorised to by this order; or why didn’t they when the inevitable tragedy was occurring before their eyes- Answer because they did not think they were authorised to by this authorisation? The question for the Commissioner is then what did you mean? Why wasn’t the order clear?

Or someone is being prosecuted for failing to comply with an order – did they commit the offence if it was made by a REMO? What if the REMO, at the request of the REOCON signs an order directing police to do something. The police have the authority (their authorised emergency service officers) but is the order from them or are they acting to execute a lawful or unlawful order?

None of these things are likely or perhaps even important but the last thing one wants is ambiguity and if the details aren’t being attended to here, are they being missed elsewhere?

The problem here is simply not referring to the Act. The authorisation could have referred to “all emergency services officers” and left it at that – though that too is bad drafting as then someone would have to go to the Act to know what that meant, or an SES volunteer may have thought that he or she was an emergency services officer not realising that they have to be of or above the rank of unit controller. So it is better to have the definition in the document but it should have been lifted verbatim from the Act (and it wasn’t). If it was intended to limit who was authorised, it should have said that.

It’s probably of little significance, but it’s an error or an ambiguity that is best avoided.

So where does it leave the other agencies fighting the fire and what power do they have if any. I noticed on television National Parks crews working in amongst houses on one of the fires recently. Can that officer/park ranger/field worker who is fire fighting today ask/tell residents to evacuate? Is it somehow linked to the fact under S44 he is working for the Commissioner of the RFS?

National Parks and other agencies don’t have specific powers. Anyone can ask, suggest or recommend that people evacuate – there is just no ‘offence’ if they ignore that advice. The incident controllers or authorised emergency services officers cannot do it all themselves, so the IC may order an area evacuated, but rely on others such as the SES to go and deliver the message. The SES volunteers are not authorised emergency service officers but they can certainly knock on the doors and communicate the message. Equally a NPWS fire fighter could communicate those orders. It would be unwise for any of them to use ‘force’; if force is required, the prudent response is to actually leave someone, if they don’t want to evacuate that’s their own lookout – if they are refusing to evacuate the vulnerable and force is required, call the police.